Modernism and Postmodernism in Philosophy of Law

Modernism and Postmodernism in Philosophy of Law

(The Globalization Era Challenges: Technological vs. Dialogical Theories)

Vihren BOUZOV

ABSTRACT: This paper is an attempt to outline characteristic features and

claims of modernist and postmodernist trends in the contemporary
philosophy of law and to show the importance of their present-day debate in
the Globalization Era. The theories presenting a postmodernist view of law
have developed a huge number of different, even contradictory, decisions.
They can be divided into dialogical and critical theories. The first ones
consider law as a self-developing system, and they put an emphasis on its
internal communicative aspects. The critical theories are oriented to a
rethinking of the most important modernist values.

KEYWORDS: philosophy of law, postmodernsim, technological and

dialogical theories of law

This paper is an attempt to outline characteristic features and claims

of modernist and postmodernist trends in the contemporary philosophy of
law and to show the importance of their present-day debate. Postmodernism
can be considered as a new philosophical project with radical critical
spearheadedness and as a new stage in the development of industrial
societies in the Globalization Era. The „modernist project” is a product and
ideology of the intellectual revolution in Europe in the 17th century. It has
its roots in a concept of universal values and in the unified rational order of
nature, society and the human race. Science and technologies are perceived
of by it as tools of rationalization, of social relationships. Postmodernist
criticism orientates the contemporary philosophy, and culture as a whole, to
a rejection of the absolute commitment to great rational ideas and principles
inherited from the Enlighten. It stands for and advocates a return to local,
qualitative differences and conformity with the fragmentation of subject and
society - to replace the pursuit of global human control of nature and

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adherence to the cosmopolitan values of the instrumental Reason1. This

criticism has a strong impact on philosophy, but it does not succeed in
shaking the authority of science and technology, which has been one of its
main objectives2. One can acknowledge as justified the postmodernist
rejection of methodological naturalism in the modern philosophy of science
– the belief that mathematical natural science is a universal pattern of
scientific method and rationality of knowledge. Postmodernism attributes
this role to humanitarian knowledge and proclaims its originality in a very
sophisticated manner.
For some prominent social thinkers of today the transition from
industrial to post-industrial society is an evolution, a cumulative
transformation of social structures. The postmodern society of our day is
described in the theory of N. Luhman as a complex system with increasing
functional differentiation of its subsystems. Politics, science and education,
economics, army, law, culture etc. expand their autonomy and individual
independence of each other3. This process also affects particular religious,
ethnic, social, cultural and communities, organizations as well as groups
defined per gender. The individual members of society become more self-
governing. They increasingly lose the means of available control over
government and politics4; societies today have become multi centered and
more complex5. Fragmentation and difference, clash and pluralism of
interests dominate in the postmodern societies. According to N. Luhman the
functional differentiation of social systems is the main vehicle of social
evolution6. The increasing cultural and ethnic differentiation of the present
existing global society, due to the growth of new means of communication

1
Vihren Bouzov, “V zashtita na modernostta [In Defence of Modernity]”, Travaux
de L’Universite „St. St. Cirille et Methodie” De Veliko Turnovo, Faculte
D’Philosophie, 3 (4), 1998.
2
Vihren Bouzov, “Postmodernistkata kritika na racionalizma i naukata – granici na
validnost [The Postmodernist Critique of Rationalism and Science – Limits of
Validity]”, in Osmislenost, smisal, oposredstvanost [Meaningfulness, Meaning,
Mediation], Essays in honour of Prof. D. Ginev, Critique&Humanism, Sofia,
1998.
3
Niklas Luhman, Vavedenie v sistemnata teoria [Introduction to the System
Theory], Critique&Humanism, Sofia, 2008. 
4
Charles Taylor, Bezpokoistvoto na modernostta [The Malaise of
Modernity],(Critique&Humanism, Sofia, 2008, pp. 17-19 
5
V. Bouzov, “The Postmodernist Critique”, p. 129 
6
Luhman, Vavedenie v sistemnata teoria [Introduction to the System Theory] 

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and the free movement of people, could be added to these circumstances.

The objective necessity of reexamination of the traditional modernist
concept of law and its social role in the past two centuries is confirmed by
all of these conclusions.
Law, perceived of as a technique of social problem-solving, makes
up the main context of „the modernist project”. It is identified with its
normative mode of existence – it is а system of norms, deduced from law
texts or normative acts. They form a hierarchic coherent system. Their
application to a particular case can be realized through logical arguments.
The validity of law stems from legal texts. Law regulation is effected in the
sphere of the obligatory and compulsory. One cannot expect that it could
measure up to moral claims and arguments; they relate to the real world,
which must be transformed according to the rules of law. The legislative
power enacts and derogates legal norms. In principle, complete regulation of
social relationships is considered as possible and admissible. The legal
positivism of J. Austin, H. Kelsen and H. Hart is the most typical
representative of this concept of law. It dominated the legal philosophical
thought until the middle of the 20th century; it has had an effect on the
European legislative systems and their doctrines today. Legal Realism
upheld by some schools with sociological or psychological orientation is
also a part of this trend – the projects of Sociological Jurisprudence (R.
Pound7) and in Politics of Law (L. Petrazycki8) with their technological
point of view.
According to postmodernist thinkers, law „cannot be seen any
longer as a coherent, closed ensemble of rules of values”9. The positivist
paradigm of law has become an anachronism - it could not solve the main
problems of society at the end of the 20th century; it is but an instrument of
preservation of a social, economic and political status quo. Postmodernists
criticize modernist scientism and naturalism. They question the formalist
understanding of law and the submission of a judge’s decisions to texts of
law only and consider that they must be conformed to moral reasons and
political correctness.

7
Roscoe Pound, An Introduction to the Philosophy of Law, Yale University Press,
New-Haven-London, 1982. 
8
Leon Petrazycki, Teoria prawa i panstwa w zwiazku z teorii moralnosci [Theory
of Law and State Related to the Moral Theory], PWN, Warszawa, 1959. 
9
Costas Douzinas, Ronnie Warrington,  Postmodern Jurisprudence: The Law of
Text in the Texts of Law, Routledge, London & New York, 1990, p. 27. 

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VIHREN BOUZOV

The theories presenting a postmodernist view of law have

developed a huge number of different, even contradictory, decisions. They
can be divided into dialogical and critical theories. The first ones consider
law as a self-developing system, and they put an emphasis on its internal
communicative aspects. The critical theories are oriented to rethinking the
most important modernist values.
Language ceases to be a neutral medium of communication; it
proves to be an active force, making up the content of verbal expressions.
This fact justifies the deconstruction of the following divisions: language-
reality, truth-fiction, truth-opinion, rational-irrational. We are doomed to
uncertainty10. This line of thinking is upheld in some informal theories of
legal argumentation (H. Perelman and his school, the humanist branch of
the Legal Hermeneutics) and in other postmodernsit schools (The Critical
Studies of Law, The Feminist Jurisprudence). Objective truth cannot be an
attainable aim of court proceedings. The application of law is interpreted as
a play, in which there exists „a tension between order and disorder, freedom
and constraint as well as determinacy and indeterminacy”. It is played „both
within and with rules”, constituting it. Indeterminacy and decision are two
aspects of this law’s language game – it comprises „a vast practice of
infinitely possible moves in which each player must come to a decision”.
The correctness, or legitimacy, of any particular move does not depend on
proof or demonstration – it arises out of „the rhetorical force of judgment
made”11. The Law and Economic School develops a congenial version of a
game-theoretic vision of law, but it is oriented towards its social
consequences. It is observed among certain schools with postmodern
orientation12. The postmodern jurisprudence only reveals „just rhetoric”,
beyond the rationality of law13.
Individualism, formal justice and negative formulation of the
fundamental human rights („freedom from…”) make up the foundations of
modernism in legal philosophy. It leads to violation of the interests of
minorities and marginal groups and neglects the requirements of material
justice. The democratic state of law does not resolve „the social problem”.
10
Henryk Leszczyna, Hermeneutyka prawnicza [Legal Hermeneutics], Oficina
naukowa, Warszawa, 1996, pp. 108-109. 
11
Allan Hutchinson,  „The Reasoning Game: Some Pragmatic Suggestions”, in
Modern Law Review, 61, 1998. 
12
Jerzy Stelmach, Roamn Sarkowicz, Filozofia prawa XIX i XX wieku [Philosophy
of Law in 19 and 20th Centuries], Jagiellonian University, Krakow, 1998.
13
Jack Balkin, “Just Rhetoric?”, in Modern Law Review, 55 (5), 1992, pp. 746-753 

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 Modernism and Postmodernism in Philosophy of Law

Global capitalism brings further division into the distribution of wealth.

Postmodernists stand for communitarian values – solidarity, mutual aid,
social integration and survival. One can say that they offer a very topical
social and ethical criticism of modern law. The influence of postmodernist
schools with such types of orientation has been growing in past years14.
They call for a radical reform of contemporary legal normative systems. The
present-day confrontation of modernism and postmodernism in the
philosophy of law is even more topical than the debate between legal
positivists and natural law theorists.
Postmodernism, in the contemporary philosophy of law, interprets
the latter as a dialogue, a social medium in the multi centered global society,
the main task of which is the solution of problems via consensus. As A.
Hutchinson writes: „the limits of the game and the validity of acceptable
moves within any particular performance of the game are not established”
once-and-for-all, but are provisional markers that are constantly being
negotiated and re-negotiated as the games plays on”15. Legislators only
define the common framework and principles of law problem-solving in
statutes, but its application is a matter of creative attitude of judges and
parties to a particular case. Law is treated as a dialogue and an instrument
for achievement of consensus in the discursive theories of J. Habermas and
N. Luhman16. They can be considered as an expression of the spirit of
postmodern philosophy, but in a political aspect they are closer to
modernism.
Some postmodernist critical arguments against modernism in legal
philosophy and social theory can be assessed out as grounded and feasible.
But they neglect the objective duality of the institution of judicial evidence
and legal decision-making. The search for material truth is its main task
according to the rules of procedure. It relies on established empirical facts,
not only on interpretation and language context. The results of court
proceedings come as arguments in a reasoning game. The more grounded
they are, the greater their rhetoric force will be. Objective truth and
creativity are indispensable in the court game. It is impermissible to go

14
Lech Morawski, Glowne problemy wspolczesnej filozofii prawa [Main Problems
of the Contemporary Philosophy of Law], PWN, Warszawa, 1992.
15
Hutchinson, „The Reasoning Game”, p. 275 
16
Vihren Bouzov, Filosofia na pravoto i pravna logika v globalnata epoha
[Philosophy of Law and Logic of Legal Reasoning in the Globalization Era],
Abagar, V. Turnovo, 2010, pp. 65-70

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VIHREN BOUZOV

beyond its rules: they are enacted in the texts of law. The activity of courts
is not identical with a game in all aspects. One must be most cautious when
it comes to dealing with claims on a postmodernist revision of
contemporary legal systems and doctrines.

References

Balkin, Jack Balkin, “Just Rhetoric?”, in Modern Law Review, 55 ( 5), 1992.
Bouzov, Vihren, Filosofia na pravoto i pravna logika v globalnata epoha
[Philosophy of Law and Logic of Legal Reasoning in the Globalization Era],
(V. Turnovo, „Abagar” Publ. House, 2010) (in Bulgarian).
Bouzov, Vihren. Bouzov, “Postmodernistkata kritika na racionalizma i naukata –
granici na validnost [The Postmodernist Critique of Rationalism and Science –
Limits of Validity]”, in Osmislenost, smisal, oposredstvanost [Meaningfulness,
Meaning, Mediation], Essays in honour of Prof. D. Ginev, Critique&
Humanism, Sofia, 1998 (in Bulgarian).
Bouzov, Vihren. Bouzov, “V zashtita na modernostta [A la defence de la modernite
– fr. Rezume]”, in Travaux de L’Universite „St. St. Cirille et Methodie” De
Veliko Turnovo, Faculte D’Philosophie, 3 (4), 1998 (in Bulgarian).
Douzinas, Costas Douzinas, Ronnie. Warrington etc., Postmodern Jurisprudence:
The Law of Text in the Texts of Law, (London and New York: London&New
York, 1990).
Hutchinson, Allan Hutchinson, “The Reasoning Game: Some Pragmatic
Suggestions”, in Modern Law Review 61, 1998.
Leszczyna, Henryk Leszczyna, Hermeneutyka prawnicza [Legal Hermeneutics],
(Warszawa: Oficina naukowaOficina naukowa, Warszawa, 1996) (in Polish).
Luhman, Niklas Luhman, Vavedenie v sistemnata teoria [Introduction to the System
Theory], Critique&Humanism, Sofia, 2008.
Morawski, Lech Morawski, Glowne problemy wspolczesnej filozofii prawa [Main
Problems of the Contemporary Philosophy of Law], PWN, Warszawa, 1992.
Taylor, Charles Taylor, Bezpokoistvoto na modernostta [The Malaise of
Modernity], Critique&Humanism, Sofia, 1999 (in Bulgarian).

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